Court of Appeals of Texas, Second District, Fort Worth
THE 16TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO.
SUDDERTH, C.J.; MEIER and PITTMAN, JJ.
T. PITTMAN JUSTICE
a permissive interlocutory appeal from the trial court's
dismissal of Appellant Jennifer Lane's defamation suit
against Appellee Christine H. Phares. The trial court
dismissed Lane's claims under the Texas Citizens
Participation Act (TCPA), finding that the TCPA applied to
Lane's claims, that Lane is a limited-purpose public
figure, and that Lane did not establish that Phares made
internet postings about Lane with actual malice. See
Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003,
27.008 (West 2015). We granted Lane permission to appeal the
trial court's dismissal order. See Tex. R. App.
P. 28.3. Because Lane is a limited-purpose public figure and
failed to produce clear and specific evidence that Phares
published defamatory statements with actual malice, we
an operatic singer and a voice professor at the University of
North Texas (UNT). Phares is a former student of Lane's
at UNT. Phares anonymously posted a comment on an online
forum for classical singers, stating that Lane: (1) filed
lawsuits against each of her former university employers and
against UNT; (2) "loses an average of 3-4 students out
of her studio per semester"; (3) "teaches in
unhealthy ways [and] causes vocal problems"; and (4)
"talks shit on singers and faculty in a serious
way." Phares also posted comments on the
RateMyProfessors.com website stating that: (1) Lane's
teaching methods caused documented vocal injury; (2) Lane is
distracted and not focused during lessons, often on computers
or her phone while a student is singing; (3) Lane is not
organized and is often late to lessons; (4) Lane demeans
students and is not respected by faculty, peers, or students;
and (5) Lane has been on faculty probation.
sued Phares and other unnamed defendants for defamation, a
permanent injunction, and a request for a correction,
clarification, or retraction under civil practice and
remedies code section 73.055(d). See Tex. Civ. Prac.
& Rem. Code Ann. § 73.055(d) (West 2017). Phares
answered, filed a counterclaim for fraud, and filed a motion
to dismiss under the TCPA. In the motion, she asserted that
Lane's suit was based on, related to, or was in response
to Phares's exercise of her rights to free speech and of
association and that Lane is an all-purpose public figure, or
at least a limited-purpose public figure. In response, Lane
asserted that she is not a public figure, limited or
otherwise, and that even if she is, Phares posted her online
comments with actual malice.
hearing, the trial court granted Phares's TCPA motion to
dismiss. In the dismissal order, the trial court found by a
preponderance of evidence that Lane is a public figure and
that her legal action is based on, relates to, or is in
response to Phares's exercise of her rights of free
speech and association. The trial court further found that
Lane did not establish that Phares's comments were made
with actual malice.
Lane's request, the trial court made findings of fact and
conclusions of law. The trial court found that Lane has
chosen a career that regularly involves media attention and
has invited public attention and that she has achieved
notoriety and recognition in her community as both an opera
singer and a professor. The trial court concluded that Lane
is a public figure and that she did not establish that Phares
acted with actual malice with regard to the internet
postings. Upon Lane's further request, the trial court
made the additional finding that Lane is a limited-purpose
filed a petition seeking permission for this interlocutory
appeal challenging the trial court's order, which we
granted. See Tex. R. App. P. 28.3; Lane v.
Phares, No. 02-17-00190-CV, 2017 WL 2807404 (Tex.
App.-Fort Worth June 29, 2017, no pet.).
Dismissal under the TCPA
review de novo a trial court's ruling on a motion to
dismiss under the TCPA. Dall. Morning News, Inc. v.
Hall, 524 S.W.3d 369, 374 (Tex. App.-Fort Worth 2017,
pet. filed); Rehak Creative Servs., Inc. v. Witt,
404 S.W.3d 716, 724-27 (Tex. App.-Houston [14th Dist.] 2013,
pet. denied), disapproved of on other grounds by In re
Lipsky, 460 S.W.3d 579 (Tex. 2015). We construe the TCPA
liberally to fully effectuate its purpose and intent.
Hotchkin v. Bucy, No. 02-13-00173-CV, 2014 WL
7204496, at *1 (Tex. App.-Fort Worth Dec. 18, 2014, no pet.)
(mem. op.) (citing Tex. Civ. Prac. & Rem. Code Ann.
§ 27.011(b) (West 2015)).
plaintiff defeats a motion to dismiss under the TCPA by
establishing by clear and specific evidence a prima facie
case for each essential element of the plaintiff's claim.
Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c) (West
2015). The requirement for "clear and specific
evidence" means the plaintiff "must provide enough
detail to show the factual basis for its claim."
Lipsky, 460 S.W.3d at 590-91. For a defamation
claim, a plaintiff must prove among other elements that the
defendant published a false statement of fact and that the
defendant did so with the requisite degree of fault-with
negligence if the plaintiff is a private figure or with
actual malice if the defendant is a public figure.
Id. at 591.
Public Figures and Defamation Law
Lane is a public figure is a question of law. See Neely
v. Wilson, 418 S.W.3d 52, 70 (Tex. 2013). "In this
determination, federal, not state, standards apply."
Schofield v. Gerda, No. 02-15-00326-CV, 2017 WL
2180708, at *12 (Tex. App.-Fort Worth May 18, 2017, no pet.)
(mem. op.) (citing Rosenblatt v. Baer, 383 U.S. 75,
84, 86 S.Ct. 669, 675 (1966)).
are two classes of public figures in the defamation context:
(1) general-purpose public figures, "who have achieved
such pervasive fame or notoriety that they become public
figures for all purposes and in all contexts, " and
(2) limited-purpose public figures, who are "public
figures for a limited range of issues surrounding a
particular public controversy." WFAA-TV, Inc. v.
McLemore, 978 S.W.2d 568, 571 (Tex. 1998).
General-purpose public figures hold positions of persuasive
power and influence, while limited-purpose public figures
have "thrust themselves to the forefront of particular
public controversies in order to influence the resolution of
the issues involved. In either event, they invite attention
and comment." Gertz v. Robert Welch, Inc., 418
U.S. 323, 345, 94 S.Ct. 2997, 3009 (1974); see also
Hoskins v. Fuchs, 517 S.W.3d 834, 842 (Tex. App.-Fort
Worth 2016, pet. filed) (stating that limited-purpose public
figures "thrust themselves to the forefront of
particular public controversies in order to influence the
resolution of the issues involved . . . invit(ing) attention
and comment"; "inject () (themselves) or (are)
drawn into a particular public controversy . . . assum(ing)
special prominence in the resolution of public
questions"; and "thrust (themselves) into the
vortex of (a) public issue . . . (or) engage the public's
attention in an attempt to influence its outcome.")
(citations omitted). "[P]ublic figures effectively have
assumed the risk of potentially unfair criticism by entering
into the public arena and engaging the public's
attention." Steaks Unlimited, Inc. v. Deaner,
623 F.2d 264, 273 (3d Cir. 1980).
a three-part test to determine whether a person is a
limited-purpose public figure:
(1) the controversy at issue must be public both in the sense
that people are discussing it and people other than the
immediate participants in the controversy are likely to feel
the impact of its resolution;
(2) the plaintiff must have more than a trivial or tangential
role in the controversy; and
(3) the alleged defamation must be germane to the
plaintiff's participation in the controversy.
Neely, 418 S.W.3d at 70.
Lane Qualifies as a Public Figure under Defamation
The Record Contains Conclusive Evidence Establishing
Lane's Public-Figure Status
Lane's Professional Website
maintains a personal website about her career. Phares
included excerpts from the site as exhibits to her affidavit
included with her TCPA motion to dismiss. According to the
site, "[t]he press has described [Lane's] singing as
'clear, rich, plangent, ' 'compelling and
dramatic, ' and possessing 'agility and
charisma.'" On her biography page on her website,
Lane lists her many acclaimed public performances, stating
that "[s]he has been featured by many of the most
prestigious institutions and orchestras in the U.S. and
abroad, " including the Metropolitan Opera, New York
City Opera, San Francisco Opera, Opera Monte Carlo, Opera du
Caen, and the San Francisco Symphony. She also states that
she "has over fifty CD recordings to her name on a wide
variety of labels, as well as two films."
biography page on her personal website also mentions her
distinguished teaching career, stating that she taught at the
University of Kentucky-Lexington "before being recruited
to [UNT] as Associate Professor." She states that before
the University of Kentucky, she taught at Stanford and that
she teaches regularly at summer workshops. She states that
her students have won awards from the Metropolitan Opera
Council, the Orpheus Competition, the Holt Foundation, and
the National Association of Teachers of Singing and have been
admitted to graduate study at the Peabody Institute, the
Royal Academy of Music/London, Indiana University, McGill,
and Eastman. She further states that "[a] number of them
are enjoying active national and international opera,
concert, and teaching careers."
website additionally has a "Critical Acclaim" page
where Lane sets out excerpts from positive press reviews of
her performances drawn from reviews of operas she has
appeared in across the country, including reviews from the
Philadelphia Inquirer, the Cleveland Plain
Dealer, the Chicago Tribune, the Washington
Post, the Los Angeles Times, TheaterJones.com,
and several other arts-oriented websites. Lane's personal
website also has pages with lengthy listings of her operatic
roles, orchestra appearances, recitals, and discography, and
a page dedicated to her voice teaching, discussing her
teaching positions past and present and master classes she
Lane's Faculty Page on UNT's Website
faculty page on the UNT website is also included as part of
the evidence supporting the motion to dismiss. The faculty
page, after listing her contact information, begins with a
statement that she was nominated for a Grammy in 2015 for one
of her operatic roles. The page then notes the various
institutions at which she has taught and states that she was
an ensemble member on a Grammy-winning recording of a
symphony performance with the New York Philharmonic. Next,
the page asserts that many of her students are now successful
professional singers and academics. Then the page states that
Lane "is recognized internationally for her stunning
interpretations of repertoire." The page notes that she
performed a main role in a production of Dido &